Yes. In December they sent him a notice of intent to fire him, with a ten-day window to respond. They claim he didn't respond. So on January 5 they sent him a letter firing him.

Can they do that?

Can who do what?

Stop being so obtuse. Can FAU fire James Tracy?

The question's way too vague. Can they fire him for what, under what?

Why are you so damned pedantic? Can they fire him for being a sicko grieving-parent-abusing whacko-conspiracy-theorist? Or is that some sort of First Amendment violation?

Okay. That's easier. I was worried you were asking me whether the termination violated FAU's collective bargaining agreement with its professors.

Oh! Good point. Did it? Can you read the CBA and tell me?

I would rather stick needles in my eyes. But, since CBAs for educators and law enforcement are generally designed to insulate them from any consequences for their actions, I would not be the least bit surprised if Professor Tracy has a decent argument that he was wrongfully terminated under the CBA. But I'm not going to research it for you.

Ok. But what about the First Amendment? Um . . . I have an embarrassing question.

Imagine my shock. What?

This dude on Twitter was saying that the First Amendment is irrelevant because it says "Congress shall make no law" and FAU isn't Congress.

The First Amendment by its plain language only restricted Congress. Section 1 of the Fourteenth Amendment, ratified after the Civil War, says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Beginning in the 1920s, the Supreme Court held that the Fourteenth Amendment necessarily applied the strictures of most of the Bill of Rights to the states, because those rights were necessary among the "liberties" protected by the due process clause of Section 1 of the Fourteenth Amendment. That process is called incorporation, and the rule that applies it is the incorporation doctrine. The Supreme Court "incorporated" the First Amendment in 1925, finding that free speech was one of the fundamental liberties protected from state infringement by the due process clause of the Fourteenth Amendment. Now most (but not all) of the rights in the Bill of Rights have been applied to the states under the doctrine.

So, Twitter dude's argument lost 90 years ago.

So, does James Tracy have a First Amendment right not to be fired from Florida Atlantic University for his speech?

Sort of.

That's not helpful.

It's a complicated doctrine, because FAU is wearing two hats: the hat of a state actor (fully restrained by the First Amendment), and the hat of an employer (not fully restrained by the First Amendment). The government has much more freedom to fire people for speech while wearing its employer hat than it has to punish people while wearing its government hat.

In brief: when the government fires an employee for speech, courts go through a multi-step doctrine. First, they ask whether the speech was on a matter of public concern. If it wasn't — if the speech was about some petty internal squabble not of interest to the public — the First Amendment doesn't prevent the firing at all. If the speech in question is on a matter of public concern, courts engage in an alarmingly touchy-feely balancing test, weighing the government employer's interest in an orderly and efficient workplace against the speech rights of the employee. Courts take into account things like whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee's interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with workplace relationships, and so forth.

Wow. How can a government employee tell how that balancing act is going to come out?

Excellent question. They can't. But the cases allow some broad generalizations. Courts will give very substantial weight to a government employee's speech outside of work on outside public issues (as opposed to, say, speech attacking coworkers or supervisors), and will require a very substantial showing of resulting workplace disruption to allow discipline based on it. Courts will give public employers much more freedom to regulate workplace speech (by, for instance, banning pornography in the workplace) and more freedom to punish speech that threatens workplace harmony by attacking supervisors, coworkers, or "customers" (like, for instance, a teacher's blog insulting her students.)

And that ain't all. It gets more complicated.

How?

Well, there's a doctrine under which a government employer can fire you for your speech, without using the balancing test, if your speech was "pursuant to official duties." In other words, if the speech is part of your job, you're not protected by the First Amendment. That's called the Garcetti doctrine, after the Supreme Court case that announced it.

Wait a minute. Doesn't that mean a university could fire a professor if they didn't like what the professor taught?

First, a court isn't obligated to accept FAU's claims about the reasons Tracy was fired. Tracy could argue that FAU's offered reasons were pretextual — that the real reason was his unpopular speech. Tracy might do that, for instance, by showing that other professors weren't fired for not turning in their forms, or that FAU only became concerned about the forms once public outcry about Tracy reached a recent crescendo. Tracy doesn't have to prove that his speech was the only reason he was fired; he only has to prove that it was a "substantial" or "motivating" factor in the decision. If he can make that showing and prove that FAU was actually substantially motivated by his speech (and he's got pretty good circumstantial evidence of that, I think), then a court would have to go through the balancing test described above.

(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)

Second, I suppose that Tracy could argue that FAU's conflict-of-interest-form requirement itself violates the First Amendment — that it's a violation of his free speech rights to require him to disclose and describe his outside speech about matters of public interest. In his favor, he's got the fact that courts will probably protect speech of instructors in a university environment more vigorously than any other public employee speech. But the conflict-of-interest form requirement is content-neutral (that is, it doesn't say anything like "disclose all Republican affiliations" or "explain all psychotic blogs you write") and directed towards something in which FAU has a legitimate interest. I'd be interested to see how someone fleshes that argument out.

Don't you think it's good that they fired him?

My heart says yes, but my head says no.

He seems to be a truly awful human being, or a truly disturbed one. It's hard for me to comprehend how anyone can rely on his instruction on any topic when he holds such bizarre conspiracy-theory views.

But American state universities will suppress viewpoints they don't like in a hot second if you let them. I believe in very strong barriers against them doing so, which necessary protects some evil people, just as the First Amendment protects evil speech by people who aren't professors. Also, I think that you can generally count on schools to find a pretext to fire professors for unpopular speech if you let them. That doesn't mean that professors should be able to insulate genuine misconduct by uttering unpopular speech, but it does mean that we should scrutinize academic firings very carefully when they occur in the context of public outcries about disfavored speech.

Comments

Hey… Don't discount the important of those Outside Professional Activities forms. Paperwork is paramount…
But, yes, I'd say they fired him for being an awful person, and they're going to have a hard time defending it (in a legal sense).

I'm gonna say that I think the university is going to prevail if it's true that the prof was using university resources without approval or notification. Using your employers resources for things not related to your job without approval is one of those things that tends to get you fired. I can't see any court willing to allow employees to spend their employer's money on pet personal projects without explicit prior agreement[1].

[1]The Collective Bargaining Agreement looks to have some 'use University resources for not specifically job related stuff' bit but also has reporting requirements that it looked like the professor was trying to doge.

I imagine that FAU, in defending itself, will have to show that it's fired other professors for using university resources inappropriately or not being up to date with their paperwork. If they haven't done it before, they'll have an uphill battle on their hands in showing that it wasn't a pretense to firing him for being a doucherocket.

Using your employers resources for things not related to your job without approval is one of those things that tends to get you fired.

In practice, in that specific university, does it actually get people fired? If he shows that the university doesn't care when other uncontroversial professors "misuse resources" or "fail to report", the university's argument falls apart (and it seems they haven't made secondary or supporting arguments).

It looks like the process was very likely kicked off by complaints that Prof Tracy was being a large kind of asshole, especially to the parents of Noah Pozner, who was murdered during the Sandy Hook massacre. However, after the process began, Tracy basically told the university to go fuck itself when they started investigating things.[2]

If the investigation was prompted by something that was protected speech, but his response to any investigation would have gotten him fired, does that provide a defense to a claim that he was fired on a pretext?

[1] Specifically, Ward Churchill.

[2] At least assuming things happened in the way they were described in the letter.

A thought. Could the university fire him because he defamed Lenny and Veronique Pozner? Saying that the Pozners' kid was imaginary seems to meet the falsehood test. The Pozners might be limited purpose public figures, but I don't see how James Tracy is going to show a lack of malice under NY Times v. Sullivan.

FL based lawyer here. Yes, FAU is definitely public. It's not just FSU, UF and a bunch of private institutions. In fact there's a whole slew of universities most people never heard of that are part of the public state university system:

Florida International University (FIU) (which also has a law school, which I didn't discover until my first day at UM Law, when I overheard other students complaining about FIU law kids using our library. In fact, at the time I wasn't aware that FIU itself even existed, much less had a law school)

Florida Gulf Coast University (FGCU)

Florida Polytechnic University

New College of Florida (technically I think they're an extension of UF, but they get treated independently)

Florida A&M University (also has a resurrected law school)

University of Central Florida (this is actually one you might know, they're actually pretty big)

University of North Florida

University of South Florida (which ironically is not actually in South FL but rather in Tampa approaching the Northern end of Central FL)

University of West Florida

Yeah, for some reason despite our abysmal educational system down here at the lower levels, we sure do love opening universities.

Thanks for the excellent 'splainer, as always. In fact, thanks for the excellent site. I don't always agree with the writers here, but it's always interesting.

@Bees!

"Yeah, for some reason despite our abysmal educational system down here at the lower levels, we sure do love opening universities."

Some reason ~= 18-year-olds like nice weather and proximity to beaches with a higher-than-national-average percentage of attractive scantily-clad members of the desired gender. Where there is demand, the market introduces a supply.

As someone who is currently using university resources to comment on this blog, I can guarantee that if we fired everyone who used university resources to do things other than conduct university business, there would be, literally, no more university employees.

While I always appreciate your analysis, Ken, assuming that the good professor* chooses to fight the school on this one, I think this is one likely to wind up as a prime exemplar in the "good facts make bad law" category. Even assuming this psychopath/loon satisfactorily demonstrates that the firing was pre-textual, when there's a restraining order out against you for the conduct that (probably) led to your firing, my guess is the court bends over backwards to see that you stay fired.

As someone who is currently using university resources to comment on this blog, I can guarantee that if we fired everyone who used university resources to do things other than conduct university business, there would be, literally, no more university employees.

Posting to a blog likely isn't going to be a problem and nothing the university could fire him for. But if he sent that certified letter using the university mail causing the university to have paid for the certification I'd have to wonder how common such an action is. In fact I'd argue that the University having paid (if they did) for the certification then it's grounds for termination because the financial connection ties the university to the letter and even makes it appear his speech was the universities.

Pure speculation on my part but I'd be surprised if a big douche like him actually paid for the certified letter himself and didn't use the mailroom.

In addition if the CBE required reporting of outside activities and he didn't they'd be obligated to terminate him under the CBE wouldn't they?

There should be some sort of "you sent a certified letter to the parents of a murdered child demanding proof their child existed so fuck your first amendment rights" doctrine. Maybe not really. But also sort of really.

I just watched a youtube video of Robbie Parker, whose daughter supposedly was killed the day before, laughing and smiling when the thought the cameras weren't rolling. Then when he was told he was 'on air', he went into a hyperventilating mode, and tried to look grieved at his loss.

It was very strange and looked like he was acting. I still don't know why not one of the families sued anybody for years until it became an issue. I still don't know why none of the EMT's who arrived were allowed into the school or why the kids would be left there to rot for hours. It doesn't make sense. And the school looks dilapidated, with a broken roof and mold growing every where on the doors…etc. Or why 20 of the families involved had their mortgage paid off on Dec 24, 2009 suddenly, a day when the Newton county assessor's office is closed. Or why there are only 2 photos of the same 8 kids being evacuated; all the dash cam videos taken by the police that day show no kids being evacuated at all when there were supposed to be over 600.

Right now a professor is being fired for questioning the government's story; obviously if this is a conspiracy, then the families have collected millions under false pretenses and so none of them is going to talk. The evidence is completely lacking that any children were killed and the whole thing appears to be geared to passing gun control laws; families were smiling 2 days later when photographed with Obama and they all mentioned gun control. Imagine smiling 2 days after your child was murdered. It's surreal. Either this is the most bizarre group of parents ever gathered together in one community, or the federal government has become completely fascistic, completing the movement in that direction after the murder of JFK.

Would there be any way the university could argue that they're more strict with all generally controversial figures in terms of their paperwork/conflict -of-interest forms/university resources without it turning the firing into a pretextual one?

Because I don't think it's unreasonable that becoming controversial gets you somewhat higher scrutiny–the university doesn't usually care if you send certified letters through their mailroom (to use the suspicion of the Trent) because it costs like nothing, but they DO at least want to be aware of it if it potentially opens them up to liability and public outrage? (Incidentally, wasn't he a conspiracy teacher? Even if he did use university resources to send that letter, I would imagine he could argue it was work-related).

Granted, I guess that could mean that unpopular speech becomes more difficult, but I dunno–at least accounting for things doesn't seem an onerous burden; if they say "Look, no one cares about Professor Boringclass, so we don't really care about his paperwork, but people are pissed about you, Professor Douchepinion, so we need to be aware of and keep an eye on where we're entangled with you and your positions" doesn't feel intuitively wrong.

Of course, this is law, so intuitions have nothing to do with anything.

I'm just a layman, so I could well be very wrong here, but I think the argument that they apply stricter scrutiny to paperwork of controversial figures is going to weaken their argument that the firing wasn't pretextual. There's probably a (very) small space where you could have a judge accept those facts, but I imagine it would be very difficult to end up there and not be pushed into "pretextual" grounds.

I think the University would need to show that they had, in the past, applied this same level of scrutiny in similar incidences. If they are arguing that they always apply this level of scrutiny in controversial cases, and this just happens to be their first controversial case that's going to look very pretextual.

I think really FAU's paperwork related argument entirely depends on the facts of how they have treated paperwork in the past.

Incidentally, wasn't he a conspiracy teacher? Even if he did use university resources to send that letter, I would imagine he could argue it was work-related

I would imagine arguing that it was work-related would dramatically worsen his position as it's much easier for the school to regulated work-related speech. I imagine using school resources is somewhat of a Catch-22 for the professor. If he used work-related materials and it wasn't work related, he has a problem of misappropriating resources. If it was work related, the school has more latitude to enforce speech restrictions. I would imagine the professor would have the most luck in showing that the school was being inconsistent with its punishment of misappropriated resources. If other professors in the past took these actions and were not punished as harshly, that's again going to look pretextual.

I imagine discovery will be fairly important for this case.

And now, after spouting off as a layman about the law, I'm prepared to hear about how wrong I got everything. Lawyers….3…2….1….Go!

Imagine anything two days after your child was murdered, you utter piece of garbage. It is surreal. Losing a child is surreal. Grief is surreal. Everyone grieves differently. Have you ever been at a funeral where somebody smiled or somebody laughed? I've never been at a funeral where there wasn't somebody smiling or laughing. It doesn't mean they're not grieving and it doesn't mean they're not sad or that they're insensitive to loss. Grief is not an emotion congruent to sadness. It's a process involving a whole host of mixed-up emotions. Also, laughter is not an action exclusive to happiness. If you have a dumb cartoon view of the world, you can watch that video and think Parker is an evil fascist conspirator. The only way you can write what you wrote is if you have never experienced grief. I am glad you haven't, but I hope that you can learn to be sensitive to the way other people experience the non-cartoon world we live in.

One of the more interesting reasons to read Popehat, and more particularly, any "lawsplainer" article that Ken writes is the not uncommon chance that the expertise and common sense Ken will display in the OP will be offset by a fuckwit in the comments.

Which fuckwit I'm oddly pleased to read, since nothing makes the case for vigorous free speech advocacy like having a Newtown troofer post a comment and survive their lunacy with their metaphoric balls intact.

Having said that, I would not be inclined to supply the fuckwit with bandwidth that I was paying for, but that's why Ken is a First Amendment law god, you know, and not me.

It is unlikely any court would reach any of this. Generally, a Notice of Intent to discipline (including termination) is not itself the act. Ten days would be a typical period allowed for responding to such a notice which then typically results in a hearing on whether the intended action is appropriate or permitted before the action occurs. If that is their procedure and he did, in fact, fail to timely respond to the Notice of Intent then he is probably out of luck.

The Pozners were claiming copyright violation in use of Noah's photo by Tracy. The Posners were trying to have youtube video , web pages, and not just Tracy's, etc. taken down due to claimed copyright violation. Tracy , as the accused copyright violator, has right to verify the copyright claim, or at least make that claim legally binding by sending certified letter requesting statement of such claims.

In a wider context, the Sandy Hook conspiracy theories thrive because Connecticut keeps child death certficates private. Plus other run arounds in getting documents that should be open by FOIA, as experienced by Wolfgang Halbig and others. The policies of non-openness of the records has to be blamed for the rise of doubt and thus conspiratorial thinking.

I know nothing about the case (other than what I read above) but I would like to comment on my understanding of how professors are "fired" under normal circumstances. My knowledge is specific to my University (not in Florida) but my experience is that most Universities are very similar.

If a person has tenure, then it is almost impossible to terminate someone. They have to commit an act of gross negligence (for example, not showing up to class for the majority of a term) or gross ethical misconduct (e.g., researching the effects of cocaine and performing "personal experiments," sleeping with student in exchange for a better grade, etc.). To be honest, in most cases, a person is given at least one warning (usually several) before s/he is terminated. At my University, I can also be terminated if the University decides that my entire Department should be dissolved. That has happened, but even in that case… my University has either paid a settlement for "early retirement" or found other Departments that could absorb the displaced faculty members.

If a person does not have tenure, then usually the professor's promotion and tenure committee makes a recommendation to terminate the probationary faculty member. Meaning, it's a group decision by colleagues (not administrators).

I have never under *any* circumstance heard *any* discussion of something as trivial as submitting conflict of interest forms at one of these meetings. We intentionally limit the discussion to relevant issues, which include: (1) quantity/quality of research, (2) quantity/quality of teaching, and (3) quantity/quality of service at the local/university, national, and international levels.

Simply put, this does not come even come close to "passing the sniff test" for the normal termination of a faculty member.

I also have some knowledge with Universities wanting to terminate professors for reasons other than those associated explicitly with their job duties. It usually involves a very polite invitation from the University President to the professor to attend a meeting in which the sole question discussed is: How much many will it take to convince you to resign your position? In a case that I know about, the professor left that meeting, drove to a car dealership, and bought a new Mercedes (paid in cash).

DRed: "There should be some sort of "you sent a certified letter to the parents of a murdered child demanding proof their child existed so fuck your first amendment rights" doctrine. Maybe not really. But also sort of really."

I'd be scared of that doctrine, because it would have to apply to all speech or writings that are perceived as grossly offensive by some people. A simple substitution yields "You propositioned a straight man for gay sex, so fuck your first amendment rights." or "You said religion X was a pile of horsecrap, so fuck your first amendment rights." There isn't a way to use the offensiveness of speech to determine if it is protected that doesn't have similar problems.

"(Of course, since FAU has fully committed to the we're-not-firing-him-for-speech argument, it would be much harder for them to argue that Tracy's speech was also so disruptive of the university that it justified his termination.)"

Why? What's to stop them from saying, "Even if you accept the plaintiff's argument that his speech was the real pretext for his termination…"

@J: Because of the nature of the balancing test and the need for proof of disruption/interference with school function. If they gathered/documented that evidence, it suggests they are lying about the reason; if they didn't gather the evidence, it suggests it wasn't actually a problem.

You can't just show up and say "his speech was disruptive"; you have to have proof.

@Dan Weber: lots of people don't like those boxes breaking up the posts so we're trying them up at the top, with posts under.

@Ken White: I don't come here for the Featured Recent Post or the Featured Flashback Post. I come here for the most *recent* post. Please add my vote for "get rid of the boxes if people don't like 'em" or "put the boxes back where they were so I can easily find what I'm interested in", or "put the boxes at the bottom of the page." I don't really think they add that much to the fine work done here.

I'm not a lawyer or a professor, but I've seen a handful of professors fired quickly for single incidences.

You're right, it's not normal for a professor to be fired like this, and what you list are normal ways they are fired.

However, it is also not normal for a professor to misappropriate university funds to buy expensive furniture for their house. I've seen professors fired quickly for that.

It's not normal for a professor to get fired for doing research using university equipment, but I've seen even college deans fired for doing that (even if it's just a laptop) when the research was not approved by the university and the professor was making money on the side that the university was not involved in.

As to not getting fired for using university email — I've seen it written in contracts that university equipment (including desk phones and email) are not allowed to be involved in any shape way or form in political campaigns. You use your own resources for that, not university resources. So it's not nearly as cut an dry as "you won't get fired for using email" at all.

This is the sort of thing that conflict of interest paperwork is for.
Not filling it out might be a pretext for firing. Giving the professor 10 days to correct this mistake not so much. If he can't fill out paperwork honestly in 10 days, maybe he's covering something else up that he deserves to be fired for.

What you describe is not consistent with my experience — I'm not saying that you are wrong, though, because things could be different elsewhere.

A few years ago, there was an issue at the University of Wisconsin in which various political types started targeting professors and there was a big hullabaloo over using the University's resources (email system, computers, etc) for personal activities. I don't know what was resolved In Wisconsin (didn't follow it that closely).

My University had discussions following the Wisconsin incident and basically it was determined that it was acceptable for faculty to use University facilities for reasonable personal use. For example, I *am* writing this on a University-owned computer and I could say that out loud and it is copacetic.

There is a somewhat murky line drawn for using research facilities (laboratories) for other activities. Technically, the laboratories should be rented and there should be a contract beforehand (I have an on-going project like this, in fact). There is even a case that was covered in my research-ethics training in which a professor invented something using the research lab. The University's opinion was that activity was fine but they legally had a right to a fraction of the royalties.

Um. Based on my time in university, assuming the guy had tenure, being obviously schizophrenic was not grounds for termination, neither was any sexual misconduct not involving felony convictions, and any misappropriation of university resources towards pet theories would be just fine. Heck, at least 1 professor had used university funds to remodel his office to avoid venting various drug related vapors… The only problems people had were the attempted multiple murder followed by successful suicide and retracting a paper owing to a mistake.

So, FAU will most likely have trouble establishing that this was not a pretextual firing.

Tracy saying, 'I do not believe this child was murdered or ever even existed' is protected speech. Idiotic, but protected.

Tracy posting the names and contact information of grieving parents, encouraging like minded lunatics to stalk and threaten them for 'being part of a government fraud designed to take away 2nd amendment rights', and demanding 'proof' that their child existed and was murdered goes beyond protected speech, into the realms of defamation and harassment.